3. OBSERVATIONS AND SUBMISSIONS OF THE GOVERNMENT
OF ISRAEL ON THE PRELIMINARY OBJECTIONSOF THE
GOVERNMENT OF THE PEOPLE'S REPUBLICOFBULGARIA *
Introduction
1.The Government of Israel has the honour to submit these
Written Observations, pursuant to the Order made by the Presi-
dent of the International Court of Justice on 17 December 1958.
Following the Orders made by the Court on 26 November 1957 and
by the President on 27 January 1958, and after the Memorial of
the Govemment of Israel fled on 2 June 1958, the Govemment of
Bulgaria raised certain challenges to the jurisdiction of the Court
to determine the issues raised by the Government of Israel in this
case. While recognizing that the respondent Government was
within its rights in so doing, the Government of Israel regrets that
the Government of Bulgaria has not made any concrete response
to the suggestion of the Government of Israel, expressed in para-
graph 56 of the Memorial, to continue to seek a solution of the
dispute by means of diplomatic negotiations, and has interrupted
the proceedings on the merits.
2. The present Written Observations will reply to the Bulgarian
Communication dated 3December 1958 and the Bulgarian telegram
dated 8 Decernber 1958 The first of these documents set forth two
Preliminary Objections. The telegram intimated that Bulgaria
wished to raise three alternativeadditional Objections, regarding
which appropriate additions were also made to the formal Sub-
missions of the Communication of 3 December. By a letter of
11 December 1958 the Bulgarian Agent fonvarded to the Registry
a "single text", itself dated 8 December 1958,purporting to consoli-
date the preliminary objections. According to that letter, this text
was one "réunissant toutes les exceptions préliminaires présentées
jusqu'à présent par la Bulgarie dans le délai fixépar la Cour et
contenues dans l'exposéécrit, déposéau Greffe le 6 décembre et
dans le télégramme du8 décembrea. c.". However this single textt
(received in the Registry after the expiration of the time-limit
fixed by the Order of 27 January 1958)is not identical with the two
documents previously filed,several modifications having been made.
Nevertheless, wherever appropriate reference will be made in these
Written Observations to the text of 8 December 1958 although that
is not the fornial pleading settingout the preliminary objections.
* See Part IV. Correspondea~e. Section A, No. 87.
1 .. .. ,.. . .. . .S0. 70.136 OBSERVATIOSS OF ISRAEL (3 Il 59)
3. These \jTritten Observations are divided into this Introduction
nd four parts. Part 1 deals with the objections set forth in the
Communication of 3 December 1958 Part II deals with the objec-
tions set forth in the telegram 8fDecember 1958. Part III contains
the Submission of these Written Observations. Part IV contains
the list of annexes which, for general convenience, have been
numbered consecutively to the annexes of the Memorial.
4. The Government of Israel considers that the Preliminary
Objections do not fdy comply with Article 62 of the Rules of
Court which requires that the preliminary objection should set out
the facts and the law on which it is based. Neither the Communi-
cation of 3 December nor the telegram of 8 December, in the view
of the Government of Israel, sets out in due form what is required
by Article 62. This reticence is placing the Government of Israel
under certain handicaps which adeqnate observance of Article 62
would have avoided. The Government of Israel. therefore, wishes to
reserve al1its rights and position under Articl62 and generally.
5. It is appropriate here to recall the principal events connected
with the membership of Bulgaria in the League of Nations and the
United Nations:
(a) Bulgaria became a member of the League of Nations on
16 December 1920. On the same day Bulgaria signed the Protocol
of Signature of the Statute of the Permanent Court of International
Justice, ratifying it on29 July 1921. The instmment of ratification
was deposited on 12 August 1921, upon which date the declaration
accepting the compulsory jurisdiction, set forth in paragraph2of the
Israel Memorial, entered into effect.
(b) In March 1941 Bulgaria entered the Second World War on
the side of the Axis Powers. On 28 October 1944 the formai armis-
tice was signed. 123 U.N.T.S., p. 223. The Peace Treaty with
Bulgaria was concluded on IO February 1947 and entered into force
on 15 September 1947. 41 U.N.T.S., p. 21. The Preamble to that
Treaty refers to the basis on which the Allied and Associated Powers
could support Bulgaria's application to become a member of the
United Nations.
(c) Bulgaria's application for membership in the United Nations
was contained in a letter of 26 July 1947, in which the Bulgarian
Government stated that it accepted the fundamental principles
contained in the United Nations Charter as well as the obligations
which would devolve upon the country by reason of its admission
to membership in the United Nations l.On 22 September 1948 the
request for admission was renewed with special reference to the
situation created by the coming into force of the Peace Treaty. The
letter referred to the respect which the Bulgarian Government
Year. SupplementNo. 15,Cp.155. Official Records (hereinafter S.C.O.R.). Second OBSERVATIONS OF ISRAEL (3 11 59) I37
always has tolvards its own undertakings and rules of international
law, and re-emphasized Bulgaria's desire to conduct itself fully
in accordance with the principles of the Charter and the obligations
arising from participation in the United Nations This was followed
on 9 October 1948 by the formal Declaration of Acceptance of the
obligations contained in the Charter (Annex 43) required by the
appropriate Rules of Procedure S. On 23 September 1954 the Bul-
garian Govemment reiterated its request for admission to member-
ship of the United Nations. It repeated what it had frequently
stated in the past, that "it unreservedly accepts the obligations
arising from the United Nations Charter" and fulfils al1 the con-
ditions required by Article 4 '.
(d) Bulgaria's application was discussed in the Security Council
on various occasions commencing with the 190th meeting on
21 August 1947 but, for reasons which are not relevant to this case,
it was not until the 705th meeting of the Security Council on
14 December 1955 that a Resolution was adopted by that organ,
recommending to the General Assernbly the admission to the
United Nations of a number of countries, including Bulgaria.
(e) On various occasions, commencing with the 252nd Plenary
Meeting on 22 November 1949, the General Assembly had under
consideration the question of the admission of Bulgaria (apart from
the more general question of the admission of new members to the
United Nations), but in the absence of a recomrnendation from the
Security Council could not itself effectuate that admission. The
General Assembly finally decided to admit Bulgaria into the Organ-
ization on 14 December 1955, immediately after the Security
Council had made the recommendation previously mentioned.
Israel voted in favour of that decision, which was adopted as
Resolution 995 (X) O.
(f ) he declaration of acceptance by Bulgaria of the obligations
contained in the Charter of the United Nations (Annex 43), which
is dated 9 October 1948, states explicitly that these obligations are
Doc. Slio12 in S.C.O.R., Third Year. Supplemenfor Septemher ,948,at p. 7.
at p.oI. SjroizlAdd. i in S.C.O.R..Fourth Year. Supplement for June 1949,
4 Uoc. rZ/AC.i6/4 in General Assemhly Official Records (hereinaiG.A.O.R.).
Ninth Session, Annexes.Agenda Item 21, at p. 5.
Israel, which becamca member of the United Sations on 11 May ,949. was
not a member of the Security Council during the period under review.
a In the coursof those discussions the delegation of lsrael had always expressed
itself in favour of thc admission of Bulevenawhen, owing to the form in which
the Reçolution was put, it found itself under the necessiof abstainingin the
votc. See for instancc the explanatioof vote in the Seventh Session. G.A.O.R.,
Plenary Meetings. p. 475,and at the Tenth Session. prior to the previausly
mentioned reconimendÿtion of the Security Council, in G.A.O.R.. Plenary Meetings.
pp. qij-4x5. This war. in accordance with the request made by the Bulgarian
<:orernment after27 July 1955.See parvgraph 30 of the Mernorial.
II138 OBSERVATIONS OF ISRAEL (3 II 59)
accepted without reserve '. By virtue of Article 4 of the Charter the
formal expression of the will of Bulgaria to join the United Nations
could not produce immediate effects in terms of membership in the
United Nations. The date upon which that result would be achieved
depended exclusively, by virtue of Article 4 of the Charter (as
interpreted by the Court), upon political events occurnng in the
Security Council and the General Assembly, over which Bulgaria
exercised no direct control and in which the will of Bulgaria was not
a factor of significance. By fding the formal instrument (Annex 43).
completely without resewation as to its terms, Bulgana completed
al1 the action required of her to become a Member of the United
Nations and thus ipso facto a party to the Statute of the Court,
including Article 36, paragraph 5, thereof.
'223 U.N.T.S., p. 31.Originally circulated as Doc. S/~orz/Add. i of rI Octaber
,948. At the time thisinstrument nas made the Rules of Procedure of the Security
Council and of the General Assembly had been amended in cornpazison with their
origiiial form and required that the application for metnbership should contnin
a declaration made in a formal instrument, that the applicant accepts the obliga-
tions contsined in the Charter. See, on this aspect. the statement, date20 January
rgso, of the Secretary-General of the United Nations in the case concerning the
Cornpetcnceof the GaiteralAssantbly for th8Admission ofa Slate 10lhe United Nalioirs
in the volume of I'leadings in that case,especially at pp. 55 ff. For the current
NICS (unchanged since ig+i),sec Rule 58 of the Prorisional Rules of Procedure
of the Security Council (SIg61Rev. 4)and Rule 135 of the Rules of Procedure of
the General Assemhly (A1366.3).
Since the establishment of the United Nations, 32 States have been admitted
to the Organization. Rcgnrding the terms of such Declurations. the practice of
these States varies. For instance, the stntement that the ncceptance of the obliga-
tions ofthe Charter is made without reservations appeurç in a number of them
(including those of Israel and Bulgaria). although the majority do not include
such J çtatement. Having regard to the language of Rule 58 of the Provisional
Rules of Procedure of the Security Council and Rule 135 of the Rules of Procediire
of the General Assembly, there is no need for any reference to this aspect to appear
in the formal instruments accepting the obligations contained in the Charter.
The inclusion of this ststement therefore semes to emphasize the intentions of
the government making the formal instrument, that formal instrument being one
of the documents before the members of the United Xations when they come to
make the decisions required of them by virtue of Article 4. paragraph 2. of the
Charter. OBSERVATIONS OF lSRAEL (3 II59)
Part 1
THE COMMUNICATI OFN3 DECEMBER 1958
A. The Firsl Objection
6. The first Preliminary Objection is couched in the following
terms: "Article36, paragraph 5,of the Statute of the International
Court of Jnstice is inapplicable in regard to the People's Republic
of Bulgaria." This appears to be based essentially on the view that
Article 36,paragraph 5, of thestatute contains an implied reserva-
tion which excepts from its application a State like Bulgaria which
did not become a party to the Statute of the International Court of
Justice nntil after the dissolution of the Permanent Court of Inter-
national Justice, said to have taken place on 18 April 1946. The
Government of Israel will argue that this view is without founda-
tion, basing itself inter alia upon Article36, paragraph 5, of the
Statutc, and the relation between that provision andthe dissolution
of the Permanent Court.
7.The English and French texts of Article 36, paragraph 5, of
the Statute of the International Court are as follows:
"Declarations made under «Les déclarations faites en
Article 36 of the Statute of the application de l'article 36 du
Permanent Court of Inter- Statut de la Cour permanente
national Jnstice and which are de Justice internationale pour
still in force shall be deemed, une duréequi n'est pas encore
as between the parties to the expiree seront considérées,
present Statute, to be accep- dans les rapports entre les
tances of the compulsory jnns- parties au présent Statut,
diction of the International comme comportant accepta-
Court of Justice for the period tion de la juridiction obliga-
which they still havc to run
toire de la Cour internationale
and in accordance with their de Justice pour la duréerestant
terms." A courir d'après ces déclara-
tions et conformément à leurs
termes. 11
The purpose and implications of this provision are established by
reference to its natural and plain meaning, its function, its place in
the context of the Charter of the United Nations and the Statute
of the Court, and (if necessary) its legislative history.
8. The Government of Israel contends that the natural and
plain meaning of Article 36, paragraph 5. is that. as betweenr4° ORSERV.4TlOSS OF ISRAEI. (3 II 59)
parties to thepresent Statute, declarationsaccepting the compulsory
jurisdiction of the Permanent Court of International Justice which
were in force when the Charter was drawn up remain in force there-
aftcr in accordance with their own terms, as declarations accepting
the compulsory jurisdiction of the International Court of Justice.
Declarations accepting the compulsory jurisdiction of the Perman-
ent Court which have not been withdrawn or which have not
expircd by effluxion of time are accordingly in full force and effect,
in accordance with their own terms, whenever the States which made
them are parties to the present Statute. No such reservation as the
Bulgarian Government is seeking to introduce into the Article is
either implicit or necessary. Consequently it is contended that
Article 36,paragraph j,answers al1the arguments advanced by the
Government of Bulgaria in the Communication of 3 December 1958.
9. Article36, paragraph 5, was drawn up with the objective of
assuring continuity in the administration of international justice,
and in full knowledge that certain States, including Bulgaria, did
not participate in the San Francisco Conference. That is its func-
tion. Bearing in mind the principle of equality of States maintained
in the Charter of the United Nations and in the Statute of this
Conrt. there is no relevance in the time at which a given State
becomes a party to the present Statute. In the present case there
is relevance only in the categorically unreserved manner (see para-
graph 5 above) in ivhich Bulgaria became a member of the United
Nations and ipso facto party to the present Statute. The Bulgarian
declaration of 1921 has never been withdrawn. Subject only to
reciprocity, it was completely unconditional and by its terrns in
force on 24 October 1945, the date upon which the Charter entered
into force, on 14 December 1955, the date npon which Bulgaria
became a rneniber of the United Nations, and on 16 October 1957,
the date upon which the present proceedings were instituted. Since
both parties to the preseiit dispute have accepted the compulsory
jurisdiction, the jurisdiction of the Court is established.
IO.The question of the meaning of Article 36, paragraph 5, of
the Statute has not been specifically considered by the Court,
although in several cases-one of the most notable being the Anglo-
Ira~zinn Oil Comeany case-the Article has been applied automati-
cally, and without giving rise to any discussion either on the part
of the parties or on the part of the Court. However, support for the
contention of the Government of Israel can be found in the treat-
ment of the analogous Article 37 of the Statute by the Court. That
Article refers to treaties or conventions "in force", and stipulates
that, :LS between the parties to the present Statute, treaties or
conventions in force providing for reference of a matter inter alia
to the Permanent Court of International Justice shall henceforth,
as between the parties to the present Statute, be read as providing
for the reference of that matter to the International Court of142 OBSERVATIONS OF ISRAEL (3 II 59)
the link between the jurisdiction of the Permanent Court and that
of the present Court, are only two of a number of such arrangements:
others dealing with different international functions are incorpor-
ated in other articles of the Charter of the United Nations, in
various resolutions of the Assembly of the League of Nations and of
competent organs of the United Nations, andin provisions contgned
in other international instruments. In no case have they been given
an inter~retation so restricted as that for which the Government of
~ul~aria is contending. These various transitional arrangements,
where they relate to the functioning of an international organization
or other organs, al1have an objective character and operate inde-
pendently of the will of individual States. This objective character
of international instruments relating to the operation of interna-
tional organizations and organs has been recognized several times
in earlier decisions of this Court, and notably in the Advisory Opi-
nion on Repuration for Injuries Sufered in the Service of the United
Nations, I.C.J. Reports 1949 ,. 174, and the Advisory Opinion on
the International Status of South-West Africa, I.C. J. Reports 1950.
p. 128.
12. This substitution of the jurisdiction of the present Court for
that of the Permanent Court, whether by operation of Article 36,
paragraph 5, or by operation of Article 37, is also fully consonant
with the automatic quality of the status of being a party to the
Statute, maintained by the words "ipso facto" in Article 93, para-
graph I, of the Charter, and the consequent automatic imposition
of legal obligations deriving from the Statute of the Court-includ-
ing Article 36 thereof-by the mere fact of membership in the
United Nations. This aspect has recently been stressed by the Court
in an interpretation of Article 36, paragraph 2, of the Statute,
where the Court emphasized, in connection with that paragraph
(in which the expression "ipso facto" also appears), that the contrac-
tua1 relation between the parties and the compulsory jurisdiction of
the Court resulting therefrom are established by the mere fact of
the making of the declaration, and that as from the moment at
which any State makes a declaration it may find itself subject to
the compulsory jurisdiction in respect to a concrete case. See Right
of Passage case (Preliminary Objections), I.C.J. Reports 1957, 125
at p. 146. The significance of this doctrine for the present case is
al1the greater when it is recalled that there the Applicant Govern-
ment had been admitted to membership in the United Nations also
by Resolution 995 (X) of 14 December 1955, and had made its new
declaration accepting the compulsory jurisdiction of the Interna-
tional Court of Justice very shortly thereafter.The Government of
Israel contends that Article 36, paragraph 5, of the Statute operates
in precisely the same manner and that every State which applies for
admission and is admitted into the United Nations must be deemed
to take into acconnt that as the immediate consequence of its ad- OBSERVATIONS OF ISRAEL (3 II59)
I43
mission any unexpired or unwithdrawn declaration which it made
earlier will automatically become applicable to the jurisdiction of
the present Court. Specifically, on the day upon which Bulgaria
became a Member of the United Nations and a party to the Statute
of the Court, 14 December 1955, the consensual bond which is the
basis upon which the clause of the compulsory jurisdiction and any
declaration under Article 36 of the Statute can take their effect,
came into being between Israel and Bulgaria. Had the Bulgarian
Government intended or desired othenvise it should not have
repeatedly held itself out, over a penod of some eight years, as
willing to assume without reservation (see paragraph 5 above) aU
the obligations of the Charter (with which the Statute is integrated;
at the very least it should have taken steps to withdraw its declara-
tion after becoming a Member of the United Nations, and not left
the world in the belief that it was subject to the compulsory juris-
diction. Particularly as regards Israel it should have made its posi-
tion clear when soliciting Israel's continued support for Bulgaria's
admission-support which was willingly given-despite the events
of 27 July 1955 (see Mernorial, paragraph 30).
13. Neither the language of Article 36, paragraph 5, nor the
approach and intent of those who drafted it, therefore prcsent any
justification for the conclusion reached by the Bulgarian Govern-
ment. The Bulgarian Government is arguing that when Article 36,
paragraph j, says "the parties to the present Statute" it means
"the parties (being original hIcmbers of the United Nations), etc.",
or that when it says "are stiU in force" it means "are still in force
and the Permanent Court is still in existence". There is nothing to
justify this contention. To read the Article that way would be to
defeat its whole purpose and reduce it to nothing. Furthermore, to
doso would be an impossibility, because at the time when Article 36,
paragraph 5,was drawn up it was not known when the Charter
would come into forcc or when any given State would be a party to
the Statute, nor when or how the Permanent Court would ceasc to
exist. Any addition of that character would be a revision of that
provision, and go beyond interpretation. The Court has in the past
refused to make radical changes and additions to a treaty or con-
vention in the guise of interpretation. Peace Treaties case (second
phase), I.C.J. Refiort1950, 221 at p.229; U.S. hiatio?ialin Morocco
case, zbid. 1,9j2, 176 at p. 196. As has been shown, the text of
Article 36, paragraph 5,makes it clear that it is only to the terms
of the declaration itself, and not to any outside instrument or extra-
neous event, that regard has to be paid when considering whether
a given declaration is in force and the obligation of compulsory
jurisdiction is established in a concrete case. Applied to any concrete
case, this means that the critical date for determining whether the
declaration is still in force is the date when the Charter came into
force, i.e24 October 1945. If on that date there was stiU in force'44 OBSERVATIOSS OF ISRAEL (3 II j9)
a declaration (whenever made) by the respondent State, then, as
from that date (and following upon Article 36, paragraph j, of the
Statute and its objective character which makes its operation
independent of the will of any given State), the conditions exist for
the exercise of the compulsory jurisdiction on the basis of that
declaration; and only when the respondent State was at that date or
thereafter not a party to the Statute of the InternationalCourt of
Justice would a temporary obstacle, for the time being only, bar
the exerciseof that jurisdiction and the effective seisin of the Court
in a concrete case. It further follo\vs that there is no substance or
merit in the Bulgarian argument (French text, p. 126) that ta hold
that Bulgaria is to-day bound by a declaration made in 1921 would
betantamount ta contending that for more than ten years therehad
continued to be incumbent on Bulgaria an international obligation
resting on no legal basis whatsoever. The declaration of 1921 by
Bulgaria. absolutely unconditional as to time and only incorpor-
ating the condition of reciprocity, and never withdrawn (neither
before 24 October 1945 nor since), has remained in force ever since it
was first made. As these proceedings have been instituted in reliance
upon the declarations of Israel and Bulgaria, both parties to the
Statute when the Application \vas filed, the seisin of the Court is
effective and the Court is competent to decide the dispute.
14. The Communication of 3 December 19j6 seems to imply that
the authors of Article 36, paragraph j, only had in contemplation
States which became members of the United Nations before thedate
of the formal resolution of the Assembly of the League of Xations
relating to the dissolution of the Permanent Court. The date of that
Resolution is 16 April 1946. This implication is completely contra-
dicted by the record of the San Francisco Conference (so far as is
necessary to refer thereto), and particularly by the following passaFe
from the Report of Sub-Committee IV/r/A:
"(c) Of the 48 existing States which are parties to the Statute of the
Permanent Court of International Justice, 17 are not Xlembers
of the United Xations. 8 of them havine be-n enemies and "
iiciitral diirirhe prcsent !var In a<lditiùn.13prrs<:iit.\leiiibcrs
of tlic LinitcdSritioiiarc iiot partics to the Sta~uteof the Pçr-
manent Court of International justice.
(d) If the old Court is continued, al1 the present parties to the
Statute would, according to the established rules of international
law, have the right to adopt the modificationsnow proposed by
the United Nations, and thereby to remain parties tothe Statute.
In the case of enemy States, it would be possible as part of
the conditionsofpeacetoterminate theirrights under the Statute;
in the caseof other States,this would not be possibleunlessthey
were to agree to it." U.N.C.I.O., Vol.13, 524 at p. 525.
Iiideed, of the 17 States parties to the Protocol of Signature
therein referred to (ivhich included Bulgaria), no less than ID-
Bulgaria, Estonia, Finland, Ireland, Latvia, Luxemburg, Portugal, OBSERVATIONS OF ISRAEL (3 II 59)
I45
Swede~i, Switzerland and Thailand-then had declarations accept-
ing the compulsory jurisdiction of the Permanent Court still in
force. It cannot serionsly be contended, in the face of the explicit
statement appearing in the Report of Sub-Cornmittee IV/r/A, that
Article 36, paragraph 5, of the Statute was drawn up without regard
for States in that position, or that it was or could have been assumed
at the San Francisco Conference that al1 or any of those States
would become Members of the United Nations before the disso-
lution of the Leagne of Nations and the Permanent Court, of which
even the anticipated date was unknown at San Francisco. To hold
otherwise wonld mean to deprive -4rticle 36, paragraph 5, of its
objectivecharacter and make its operation depend upon the chances
of international political events. That, however, would be in direct
contradiction both with the plain meaning of the Article, and with
its function.
15. The natural and ordinary meaning of Article 36, paragraph
5, is thus clear and there is no difficulty in giving effect to it. How-
ever, in this case the travaux $ré$aratoires give full confirmation to
the results already obtained. The problem of the future of the
declarations then in force accepting the compulsory jurisdiction of
the Permanent Court of International Justice, in view of the possible
establishment of the new Court, was first raised by Governments in
connection with the Dumbarton Oaks proposais (1944) and the
Washington Committee of Jurists. For instance, the following
~araerauh from the comments of the British Government clearlv
Sets Forth thesis and antithesis, and is thus of considerable impori-
ance as demonstrating the problem which the drafters of Article 36,
paragraph 5, sought to solve :
"One question which will arise in connection with Article 36, is
what action should be taken concerning the existing acceptances
to certain resewations, bound themselves to accept the jurisdiction
of the Court as obligatory. Sbould these acceptancesbe regarded as
having automatically come to an end or should some provision be
made for continuing them in force with perhaps a provision by
which those concerned could revise or denounce them." U.N.C.I.O.,
Vol. 14. 314 at p. 318. (Italicsupplied.)
At San Francisco the question was discussed in Sub-Cornmittee
IV/I/D, which included the following in its report:
"The uew paragraph which fol- «Le nouvel alinéa ci-après a
lows (new paragraph 4) has been étéinséréentre l'alinéa (3) et
inserted after paragraph 3: l'alinéa(4):
'Declarations made under Ar- iLes déclarations encore en
ticle 36 of the Statute of the vigueur, faites en application de
Permanent Conrt ofInternational l'article36 du Statut de la Cour
Justice and which are still in permanente de Justice intema-
forceshall be deemed as between tionale seront considérées,en ce
the parties to the presentStatute qui concerne les rapports réci- OBSERVATIONS OF ISRAEL (3 II 59) I47
on 18 April1946, the date upon which the Assembly of the League
of Nations adopted the Report of the First Committee and Resolu-
tion on the Dissolution of the Permanent Court of International
Justice (Annex 44). In connection with this, relying upon what is
termed "un caractère transitoire" of the provisions of Article 36,
paragraph 5, the Communication reaches a conclusion about
superimposed or immediately following penods of time within
which the Article is said to be effective(French text, pp. 127, 128).
These contentions are refuted both by Article 36, paragraph 5,
and by the nature of the transaction comprehended within the
expression "dissolution of the Permanent Court", including the
nature of the problems with which it was concemed.
17. The question of the dissolution of the Permanent Court of
International Justice was not directly discussed at the San Fran-
cisco Conference although it is clear from the published records of
that Conference that the participating States (which included
neither Israel nor Bulgana) were aware of the nature of the juridical
problems posed by the creation of the International Court of Justice
as a principal organ and the principal judicial organ of the United
Nations, and predicated their actions upon the assumption that
ultimately the Permanent Court would be dissolved. This is implicit
in Articles 36 and 37 of the Statute. For instance, a fundamental
question at San Francisco was whether to reconstitute the Perman-
ent Court or whether to establish a new Court in its stead. and the
solution actually reached, and embodied in Articles 7 and 92 of the
Charter and Article I of the Statute, is a compromise between two
somewhat divergent approaches. This is bome out by the Report
of Sub-Committee IV/I/A of the San Francisco Conference". ln this
connection the citation from that Report in paragraph 14 above is
relevant. On the other hand, while Sub-committee IV/r/A discussed
in general terms the question of the future of declarations accepting
the compulsory jurisdiction, it reached no conclusion thereon hav-
ing regard to the fact that this aspect was being discussed by Sub-
Committee IV/I/D, as has already been described12. This, too,
emphasizes that the decision to include in the Charter Article
36, paragraph 5, dealt with one matter and that the decision to
dissolve the Permanent Court dealt with quite a different and
distinct matter. The question of the dissolution of the Permanent
Court was discussed in the Preparatory Commission of the United
Nations as a marginal issue in connection with the Commission's
task of convening the new Court. The Commissionadopted a resolu-
tion indicating that it would welcome the taking of appropriate
steps by the League of Nations for dissolving the Permanent Court lS.
'1U.N.C.I.O., Vol. 13 at p524
''Ibid., p.527.
''The Commission proceeded on the basis of an indication by certaof its
members who were also members of the League of Nationof their intention to
move in the forthcoming meeting of the League's Assembayrerolution for the148 OBSERVATIO~S OF ISRAEL (3 II j9)
The formal steps of the dissolution of the Permanent Court were
undertaken in the final (zrst) Ordinary Session of the Assembly of
the League of Nations 14. The item was referred to the First Com-
mittee, the Report of which (Annex 44)stresses the formal character
of the resolution proposed as well as "the close continuity that will
exist between the Permanent Court and the International Court of
Justice". Introducing the Report of the First Committee to the
Sixth Plenary Meeting on 18 April 1946, the Rapporteur, Professor
(now Sir Kenneth) Bailey of Australia emphasized the fact of the
substitution of the International Court of Justice for the Permanent
Court 16.The Resolution adopted stresses that the Permanent Court,
which de facto was not in existence, was to be "regarded as dis-
solved".
18. The circumstances in which the Assembly of the League of
Nations adopted the Report of the First Committee and the Reso-
lution of 18April1946 (Annex 44) showclearly that it was concern-
ed with the material aspects of that operation and not with any
question of intertemporal law, nor with the Statute of the Perman-
ent Court as such. Furthermore it was made abundantly clear in
the discussions that the whole operation eroceeded 03%the basis that
continuity infhe administratio?~of international justice was assured.
The Resolution was purely declaratory of an existing state of
affairs, and in so far as there waç substance in its operative provi-
sion. that \vas limited to ttic giving of :~dv;inccxpproval to ;irr:iiige-
nietils 16 b?inn~ie for th,: tlisoosül of the iiiaterial assets ;iiiclli;~bilitics
of the Permanent Court. &nsequently the Report and Resolution
have nothing to do with the objective legal situation regarding the
jurisdiction of the International Court of Justice, a matter whicli is
governed exclusively by Articles 36 and 37 of the Statute of the
International Court of Justice.
purpose of etiecting the dissolution of the I'eriiiaiient Court, and of the intention
of the powers concerned to require, under the termç of the peace treaties made
with them or in some other appropriate form, the assent of those States parties
to the Pratocol of Signature of the Statute of the Permanent Court which had
been or still sere aw-arwith certain members of the United Sations (this included
Bulgaria), to any measures taken to bring the Permanent Court to an end. The
draft resolution put forward by the Executive Committee proposed recording
the assent to the dissolution of the Court of those members of the Preparatory
Commission whicb iuereparties to the I'rotocol of Signature, whether members
of the League of Sationç or not. Report by thExecutive Coriiaiil10eIhePreporatory
Comnzission of the United h'ationr, doc. 1'C/EX/i13/Rev. I,pp. 8, 67. For the
discussion in Committeï Five of the Preparatory Commission. see PC/LEG/)r in
Summary Record of Meetings, at p. ii. For the text of the resolution as fin;illy
adopted, see Report of the Preparatory Commission. doc. PC/zo. at p. 57.
" League of Nations. OfFciol Journol, Special Supplement Xo. 194,
'&Ibid., p. 55. See alsuibid., pp. 73-75 and 85-86 for the brief discussion in
the First Committee. This continuity is graphically illustratedby the fact that
the International Court of Justice held its inauguralsession also on18April ,946.
No hiatus between the two Courts left the warld for one moment without an inter-
national court. OBSERV.~TIOFS OF ISRAEL (3 II 59) I19
19.The Government of Bulgaria makes some play of the fact
that no mention of the declaration of 1921appears in the Yearbooks
of the International Court of Justice which have been issued since
Bulgaria became a Rlember of the United Nations. It sees in this
corroboration of its thesis. The Government of Israel regrets the
introduction into the case of this argument which relates to the
Registry of the Court (to which the Government of Israel wishes to
pay its tribute). At the same time it is pointed out that the Bulgar-
ian Government overlooks several aspects, of which the most
important may be mentioned. One is, as each issue of the Yearbook
States in its Preface, that the Iiearbookis prepared by the Registry
and in no way involves the responsibility of the Court. Another is
that the Registrar was never the depository of the declarations
accepting the compulsory jurisdiction of the Permanent Court, but
the Secretary-General of the League of Nations. The responsibili-
ties of the Secretary-General as depository of an international
instrument have been analysed by the Court particularly in the
Advisory Opinion on Keservations tu tlze Convention on Genocide,
I.C.J. Reports 1951, p. 15, and in its cited ludgment in the case
conceming Right of Passage ovev I~zdian Territory (Preliminary
Objections). The pronouncements of the Court make it clear that
the actions-or inactions-of the depository authority even as
regards duties specifically imposed upon him by the instrument in
question do not affect the objective legal situation thereunder
existing between two States. This is al1 the more true of matenal
included in the Court's Yearbook, the issuance of which is not a
duty imposed upon the Registrar by the instruments in question.
In the submission of the Government of Israel the Iiearbook of the
International Court of Justice is not evidence for the validity or
even the existence of instruments conferring or purporting to
confer jurisdiction on the Court.
20. The contentions of the Government of Israel may now be
summarized.
(a) The decision of the San Francisco Conference to establish the
International Court of Justice as a principal organ and the principal
judicial organ of the United Xations rather than to continue the
Permanent Court ofInternational Justicegave risetotwosetsof prob-
lems, the first iurisdictional-bein~ problems of intertemporal law-
nnti tiiv second ntiiiiiiiist~it:ii~d;r~;iiiiz;itio~~aI-t~ei~~~coiic~~riicd
\vitIl the m;itcrinliriiiitl:itof th^.IJt:riiinncC~~iirtT~L.~i~ristIi<:-
tional questions werédealt uith exclusively nt San ~ranc&co, the
solution being embodied within Article 36, paragraph 5,and Arti-
cle 37 of the Statute of the International Court of Justice. With
the function and objective ofmaintaining certaintyand continuity in
the administration of international justice, those Articles provide
for the automatic and continued application, as instruments con-
femng jnrisdiction on the International Court of Justice, of al1I50 OBSERVATIONS OF ISRAEL (3 1159)
instruments in force confemng jurisdiction on the Permanent
Court of International Justice. That transfer of applicationperates
objectively, being effective whenever the States concerned are
parties to the Statute of the International Court of Justice.
(b) It is clear from the relevant discussions that the underlying
objective in 1945 was to maintain and assure certainty and con-
tinuity in the administration of international justice and to avoid,
so far as was possible, the creation of any jnrisdictional hiatus
between the two judicial organs of the international community.
(c) The second category of questions related to the disposal of
the various assets and liabilities of the Permanent Court of Inter-
national Justice considered as an organ which was ceasiug to exist
as an organ of the international community. These questions were
dealt with by the Assembly of the League of Nations, under the
auspices of which the Permanent Court had been established. The
Report and Resolutiou of 18 April 1946 (Annex qq) related only to
measures of material liquidation of the Permanent Court, and the
Assembly proceeded on the assumption, asa matter of fact, that
the Permanent Court had ceased to exist and that its existing
juricdiction was transferred without any hiatus to the International
Court of Justice.
(d) The contention of the Bulgarian Government to the effect
that the application of Article6, paragraph 5, of the Statute of the
International Court of Justice is linked to the continued existence
of the Permanent Court, so that the Article is not applicable to
Bulgaria which became a Member of the United Nations after the
dissolution of the Permanent Court, is not a correct interpretation
of that Article or of the Resolution adopted by the Assembly of the
League of Nations on 18 April 1946.
(e) Accordingly the Govemment of Israel submits that the first
Preliminary Objection be rejected.
B. TheSecond Objection
21. The second Preliminary Objection argues that the Court
is without jurisdiction since Israel is submitting to the Court "a
dispute which relates to situations and facts arising prior to the
aüeged acceptance of the compulsory jurisdiction of the Inter-
national Court of Justice" by Buigaria. This Objection purports
to be based upon an interpretation of the 1srael.declaration of
3 October 1956according to which, by virtuc of an alieged principle
of reciprocity, the date therein appearing, namely zg October 1951.
may be read by Bulg&a as though it was 14 December 1955.
Furthermore, this implies that the admission of Buigaria into the
United Nations on 14 December 1955 was in law equivalent to the
adherence of Bulgaria to the compulsory jurisdiction. The Govern-
ment of Israel contests the view that the principle of reciprocity
operates in the manner suggested by the Government of Bulgaria, OBSERVATIONS OF ISRAEL (3 II59) I5I
and urges that nothing in Article 36 of the Statute prevents the
Court from exercising jurisdiction in this case. Because of the close
connection which this Objection, in the form in which it has
been pleaded, draws between Article 36, paragraph 5, of the
Statute and the operation of the Bulgarian declaration of 1921 (on
the assumption that the first Objection is dismissed), it follows
that the arguments already advanced to refutethe first Objection
are relevant to refute the second.
22. Fundamental to the approach of the Bulgarian Govemment
is the view that if its first Objection is dismissed, then in considering
the reciprocal inter-action of the two declarations the Bulgarian
declaration is to be regarded as though it had been made only on
14 December 1955. In the words of the Preliminary Objection (at
p. 130 of the French text): "This [the Bulgarian]acceptance [ofthe
compulsory jurisdiction] could be regarded as effective by virtue of
Article 36, paragraph 5, only after the entry of Bulgaria into the
United Nations, that is to Say, after December 14th, 1955." But
this contention fails to take into account the automatic nature of
the consequences of admission tothe United Nations-the fact that
a State which is admitted becomes ipsofacto a party to the Statute,
with the further consequence that Article 36, paragraph 5, of the
Statute then operates ipso facto to transfer automatically to the
junsdiction of the new Court the jurisdiction conferred on the
Permanent Court by a declaration still in force on 24 October 1945.
The automatic consequences of the fact of a State becoming a
party to the Statute of the Court have been explained in paragraph
12 above, and the remarks there made are as equally applicable to
the second Preliminary Objection as they are to the first. Frorn
Article 93, paragraph I, of the Charter it follows that on the
admission of Bulgaria into the United Nations any obstacle which
might previously have operated as a temporary bar to the effective
seisin of the Court and the exercise of jurisdiction by the Court has
been automatically removed, with the further consequence that
on 14 December 1955 the declaration of1921 automatically resumed
its full operative effect. A striking demonstration of this automatic
quality of the operation of the Article lies in the fact that, as has
recently heen stated: "As Members of the United Nations are ipso
factoparties to the Statute of the Court, it is unnecessary for appli-
cants for membership in the United Nations to make any speciai
acceptance of the Statute." Repertoryof Practicsof UnitedNations
Organs, Vol. 17 at p.14. The Declaration of Acceptance by Bulgaria
of the obligations of the Charter (Annex 43). completely without
reservation as it was, when accepted by the Generai Assembly in
the form of an affirmative resolution on admission after a recom-
mendation by the Security Council, operates automatically as an
instrument of adherence to the Charter and Statute of the Court
and, as has been demonstrated. as unreserved acceptance of al1the152 OBSERl'ATIOSS OF ISRAEL (3 11 59)
obligations-incluriing the obligations arising under the whole
of Article 36-f the Statute of the International Court of Justice.
23. Consequently it is erroneous toconstrue theBulgariandeclara-
tion of 1921 as if it constituted, in the words of the Preliminary
Objection, acceptance of the compulsory jurisdiction only as from
14 December 1955. To achieve this result would mean to omit from
consideration Article 93, paragraph 1, of the Charter, and then to
rewrite the Bulgarian declaration. But Article 36, paragraph 5, of
the Statute does not provide for rewriting the earlier declarations:
on the contrary, they are in force in accordance with their own
terms. Furtherrnore, such rewriting would also go heyond what is
included in the process of interpreting a declaration. The relevant
date of the Bulgârian declaration for the purpose of establishing
jurisdiction ~atiofeetemporis can only be that contained in or
derived from the declaration itself-12 August 1921. If the Israel
declaration contained no exception of the kind relied upon by the
Bulgarian Government, or if it contained a date before 12 August
1921, then it is probable that by virtue of the principle of recipro-
city, maintained in both declarations and in the constant jurisprud-
ence of the Court, the date 12 August 1921 would be the niaterial
date. Since the Israel declaration contains a later date-25 October
1951-then by operation of the same principle of reciprocity that
is the material date. This is the principle which has been applied in
the jurisprudence of the Permanent Court of International Justice
in cases relevant to this question, and notably in the Plzosphatesin
Morocco case, Series A/B, Xo. 74. The operation of this principle
in relation to the jurisdiction of the Court ratione temporis is not
affected by the fact that the basis for applying the Bulgarian
declaration in the present case is Article 93, paragraph 1, of the
Charter and Article 36, paragraph 5,of the Statute. Rather is it
streiigthened thereby. The Bulganan declaration is in force to-
day-as in the period of the Permanent Court-for the period
which it still has to run (i.e. sine die) and in accordance with its
terms, i.e. unconditionaiiy subject only to reciprocity, always with
effect from 12 August 1921.
24. The Goveniment of Israel contests the view that the prin-
ciple of reciprocity as applied to the present dispute entitles the
Bulgarian Government to change any of the dates which may affect
the jurisdiction of the Court ratione temporis appearing in the
Israel declaration of 1956. That declaration contains two temporal
exceptions to the jurisdiction of the Court, and there is significance
in the different wording employed to express them. The first, which
is of general nature, limits the jurisdiction of the Court to al1legal
disputes concerning situations or facts which may arise subsequent
to 25 October 1951. The second excludes disputes arising out of
events occurring between two defined dates. The first exception is
therefore partially retroactive. The date 25 October 1951 is the'54 OBSERVATIOSS OF ISRAEL (3 11 59)
15 May 1948 and 20 July 1949, but is not entitled to find entirely
different dates and justify that on the basis of reciprocity and
incidents of the history of Bulgaria.
25. The Preliminary Objection argues (French text, pp. 130 and
131)that the Bulgarian State cannot be answerable to the Court in
respect of situations and facts that occurred before Bulgaria's
alleged acceptance of the compulsory jurisdiction of the Court. In
this connection the Bulgarian Govemment, not citinganyauthority
whatsoever, makes general reference to the "thorough analyses" by
the Permanent Court and the International Conrt of Justice on the
problem of reciprocity. The Government of lsrael finds this passage
in the Communication of 3 December 1958 to be particularly
nebulous and, beyond stating that in its view there is no jurisprud-
ence of relevance to that argument, is unable at present to
make any comment on the precedents which the Government of
Bulgaria might have had in mind. The Government of Israel
contends that the correct position is established by the distinction
between the substantive content of the obligation to accept the
jurisdiction of the Court (based here upon a declaration made in
1921and remaining in force) and the procedural or adjectival aspects
effective only after 14 December 1955 (see paragraph 13 above).
As from that date the Court is competent, following on the admis-
sion of Bulgaria into the United Nations, to decide a dispute of
which it is seised after the admission notwithstanding that the facts
out of which that dispute arose occurred before the admission.
26. To recapitulate:
(a) The admission of Bulgaria into the United Nations is not the
adherence of Bulgaria to the system of the compulsory jurisdiction,
which took place in 1921.
(b) The admission of Bulgaria into the United Nations removed
al1obstacles to the seisin of the Court and the exercise of jurisdic-
tion on the basis of the declaration of 1921.
(c) By operation of the principle of reciprocity Bulgaria is
entitled, in a dispute referred to the Court by Israel, to exclude
disputes relating to situations or facts which arose before 25 October
1951 and is not entitled to alter the temporal conditions of the
Israel declaration of 1956.Since the present dispute concerns situa-
tions or facts which arose after 25 October 1951, it is not excluded
from the jurisdiction of the Court.
(d) There is no applicable de of law which excludes from the
junsdiction of the Court any dispute solely on the ground that it
relates to situations or facts which arose before Bulgaria became a
party to the Statute of the Court.
(e) Accordingly the Govemment of Israel submits thatthe second
Preliminary Objection be rejected. Part II
THETELEGRAM OF 8DECEMBER 1958
27. In the ultimate paragraph of the Communication of 3 1)ecem-
ber 1958 and immediately preceding the Submissions (French text,
p. 131) the respondent Government referred to the possihility that it
might wish to set forth additional objections and develop them
later, to which reference also appears in the Order made by the
President of the Court on 17 Decemher 1958 In the Submissions
of the Communication of 3 Decemher 1958. the third preambular
paragraph mentions vaguely the reasons developed in the Communi-
cation itself and al1other reasons which may be presented or which
the Court should consider it appropriate to add thereto or to substi-
tute therefor. This is repeated in the fourth preambular paragraph
of the Submissions contained in the telegram of 8 December 1958,
on p. 133 of the printed French text. This, too, is maintained in the
single consolidating text fonvarded by the Bulgarian Agent to the
Registrar under cover of his letter oII December 1958.
28. The Government of Israel objects to this Submission which
in its view is contrary to Article 62 of the Rules of Court. It refers
to two quite distinct aspects, namely: (a) the presentation of
additional objections hy the respondent Government after the
time-limit fixed therefor by the Order of 27 January 1958; and
(b) the addition or substitution of objections by the Court itself.
Regarding the first aspect, the Government of Israel does not agree
that a cascade of additional objections may be presented by the
respondent Government at any time convenient to itself and after
the time-limit duly fixed. Had a request been made in due form
it would certainly have agreed to a reasonable extension of that
time-limit. But since that time-iimit has passed the Government
requests that the future proceedings take place as laid down by the
Statute and Rules of Court. Regarding the second aspect, the
Government of Israel cannot accept the implication of the Bulgarian
pleading to the effect that the Court may substitute itself for one
or other of the parties in raising preliminary objections.
zg. Apparently in reiiance upon this general statement of reserv-
ation of rights, the telcgram of 8 December 1958 purported to
suhmit three further and alternative Objections based on the
exceptions therein specified and leading to the alleged inadmis-
sibility of the Israel Application. However, no statement whatsoever
of thefacts which could justify these exceptions was included in that
telegram or has heen received in the Registry of the Court within
the time-limit fixed by the Order of 27 January 1956. Having
regard to Article 62 of the Rules of Court, and more particularly to15~ OBSERVATIONS OF ISRAEL (3 II59)
the requirement that the Preliminary Objection set out the facts
and the law on which it is based, the Govemment of Israel observes
that these exceptions having been presented in a way which is
devoid of any explanation, they are therefore deficient. This is
indeed recognized in the so-called "single text" already mentioned.
In that text the Bulganan Government apparently again sought
to reserve the right later to develop these three Objections. The
Government of Israel contends that this is not in conformity with
the Statute and Rules of Court and accordingly, objecting expressly
to the admissibility of these additional Objections. submits that
they should be rejected.
30. Alternatively, and without prejudice to the previous con-
tention. the Government of Israel makes the following observations
regarding the substance of these three Objections in the form in
which they have been presented. Considering that these three
Objections are themselves ail stated to be altemative to the two
Objections set out in the Communication of 3 December 1958, it
follows that the contentions advanced in this Part of these Wntten
Observations are equally alternative and subsidiary to those
contained in Part One hereof. Furthermore, the Government of
Israel is of the opinion that itwould be more appropriate to con-
sider these three Objections in the followingorder: (a) the exception
of domestic jurisdiction (additional Objection No. z) ;(b) the excep
tion of non-exhaustion of local remedies (additional Objection
No. 3); (c)the exception based upon the ailegation that the damage
was for the most part suffered by insurance companies not of
Israel nationality (additional Objection No. 1).
31. These three Objections appear to the Government of Israel
to have several aspects in common. They ail enter upon the ments
of the dispute. They each fail to give due weight to the fact that
4X-AKC was registered in Israel and was weanng the Israel colours
(Memonal, paragraphs 3, 32 (i) and Annex 20) and that this suit
has been brought by the Government of Israel in the exercise of its
right and duty to protect its colours and al1persons on board an
aircraft registered in Israel as well as with the object of obtaining
the satisfaction and reparation due to it from the Govemment of
Bulgana for the breach of international law hy Bulgaria which
directly and primanly injured Israel inits quality as a State. Again,
in some respects, as is evident from paragraphs 37-56 of the Mem-
onal, these Objections, which purport to be objections to the admis-
sibility of the claim, may be found to raise inanew context various
issues which had occupied the Parties in the course of the nego-
tiations which foilowed the presentation of the claim in the Note
Verbale of 14 February 1956 (Annex 31). But the Govemment of
Israel finds it significant that none of these Objections to the admis-
sibility of the claim was, in the course of those negotiations, ever
put fonvard as bamng the international claim which the Bulgarian OBSERVATIONS OF ISRAEL (3 II 59) '57
Govemment had voluntarily and spontaneously undertaken to
meet in its Note Verbale of 4 August 1955 (Annex 17). on the basis
of which undertaking the Note Verbale of 14 Febmary 1956 had
been drawn up. The conduct of those negotiations by the Bulgarian
Govemment is, in the view of the Govemment of Israel, sufficient
to preclnde the Bulgarian Government from raising them now and
alternatively constitutes a waiver of them by the Bulgarian Govern-
ment. Furthermore, the Government of Israel emphasizes that the
first and third Objections, in their terms, are not relevant to the
case as a whole and in no circumstances are a bar to the admis-
sibility of the claas a whole. To the extent that, contrary to the
contention of the Government of Israel, they may be found to be
of relevance, that relevance is limited to Submission No. II (a) of
the filemonal in whole or in part.
32. Accordingly, although it might ultimately be considered that
these Objections are not genuinely preliminary in character or
cannot adequately be considered except in relation to the merits
of the case, the Govemment of Israel submits that they are al1
nnfounded and should be dismissed as preliminary objections. This
is a general submission applicable toail these Objections. It does
not, however, exhaust the individualcontentions which the Govern-
ment of Israel wishes to present in snmmary fom and dealing more
particularly with the special features of each Objection.
33. With regard to the contention that this dispute is subject
to the exclusive jurisdiction of Bulgaria or fds essentially within
the domestic jurisdiction of Bulgaria, the foiiowing observations
are made:
(a) The Govemment of Israel observes that hitherto the Govern-
ment of Bulgaria has always recognized and admitted the inter-
national character of the issues that have presented themselves.
In so far asthe legal dispute arises out of the direct injury caused to
Israel by Bulgaria, or out of breach ofthe various undertakings given
to Israel by Bulgaria, it obviously is not a domestic matter. Again,
among the points repeatedly made by the Bulgarian Government
are that certain action of its armed forces was in confomity witli
unspecified "règlements internationaux" (Note Verbale of 4 August
1955, Annex 17). or that 4X-AKC violated "les conventions inter-
nationales de navigation abrienne" (Note Verbale of IOctober 1956,
Annex 33).
(b) In this connection the Govemment of Israel recds the
clear jurisprudence of the Court establishing the relativity of the
concept of the exception of domestic jurisdiction, e.g. in the Tunis
and MoroccanNationality Decreescase, P.C.I.J. Series B, No. 4, and
the doctrine advanced in the Nottebohmcase (second phase), I.C.J.
Reports I955, 4 at p.21, to the effect that it is to the consequences
of the impugned act, as being an act leading to a breach of conven-
tional or customary international law, rather than exclusively to15s OBSERVATIONS OF ISRAEL (3 II 59)
the act itself, that regard is to be paid in considering whether the
exception is applicable.
(c) Leaving aside the implications of Bulgaria's international
undertaking to pay compensation, clearly and ex hypothesi any
discussion between two or more govemments concerning the inad-
vertent (and a fovtiori the deliberate) crossing of a frontier by an
aircraft is a discussion concerninga matter which cannot fall within
the exclusive jurisdiction of a State. In the nature of things such a
question is an international matter. The present case is between
the State which, by reason of its being the State of registration
of the aircraft, is responsible forthe security of the flight and the
State which alleges unauthorized entry into its airspace. There
isno dispute that 4X-AKC did enter the Bulgarian airspace, or that
Bulgaria had the right to take measures to protect its sovereignty,
within the limits allowed by international law (see Memorial, para-
graphs 60-79).The present disputerelates exclusively to the manner
in which the Bulgarian armed forces acted and to the subsequent
attitude of the Bulgarian Government.
(d) In general support of this argument reference may be made
to such international instruments as (inter alia) the Paris Conven-
tion of 1919 on Air Navigation (of which Bnlgaria was a party),
II L.N.T.S., p. 174, the Convention of 1944 on International Civil
Aviation (Annex IO), and the fact that the International Civil
Aviation Organization is duly established as a specialized agency
of the United Nations by virtue of the agreement of 13 May 1947,
8 U.N.T.S., p. 324. Moreparticnlarly on the question of the innocent
overflying of foreign territory by foreign aircraft without permission,
the attention of the Court is called to the Resolution adopted by
the Tenth Session of the General Assernhly on the question of the
safety of commercial aircraft flying in the vicinity of, or inadver-
tently crossing, international frontiers, Resolution 927 (X) of
14 Decernber 1955(Annex 45) The question of domestic jurisdiction
was not raised by any delegation inconnection with that Resolution.
34. With regard to the contention that the Government of Israel
bas not exhausted the remedies available in the Bulgarian courts
before applying to this Court, the following observations are made:
(a) This contention is in contradiction to the undertaking con-
tained in the Note Verbale of 4 August 1955 (Annex 17) and is
incompatible with the request in the Note Verbale of I October
1956(Annex 33) that the Government of Israel represent al1 claim-
ants regardless of nationality.
(b) The contention fails to appreciate the nature of the present
case. From. the fact that 4X-AKC was registered in Israel (Annex
20) and was wearing the Israel colours it is the State of Israel which
is directly and primarily injured by the improper actions of the
military forces of the Bulgarian State acting jure imperii. Local
remedies are therefore irrelevant, and the particulars of claims OBSERVATIONS OF ISRAEL (3 II 59) '59
contained in Annexes 40, 41 and 42 of the Memorial are also not
relevant except in connection with the calculation of pecuniary
damages the duty to pay which is one of the consequences of the
breach of international law on the part of Bulgaria.
35. With regard to the contention that the Government of
Israel is barred from bringing this suit because "for the most part"
the damage was suffered by insurance companies not of Israel
nationality, the following observations are made:
(a) This Preliminary Objection is directly contradictory to the
terms of the Note Verbale of 4 August 1955 (Annex 17. and see
paragraphs 96, 97 and 104 of the Memorial) and to the whole
manner in which the Bulgarian Government approached the diplo-
matic negotiations which followed the presentation of the Israel
claim. It is incompatible with the suggestion contained in the Note
Verbale of I October 1956(Annex 33)that the Government of Israel
assume the general representation of all claimants; and it is equally
incompatible with the request made by the Bulgarian represen-
tative on 27 August 1957. mentioned in paragraph 52 of the
Memorial, that the IsraelGovernment make arrangements for direct
contact between the Bulgarian Government and some of the claim-
ants for the purpose of explaining to them the ex gratia payment
it proposed making. Reference is also made to paragraphs 49, 100,
101 and 102 of the Memorial.
(b) The Government of Israel again emphasizes that this excep-
tion is presented without any indication whatsoever of the facts
on which it is based.
(c) Insnrance is based on contracts and arrangements between
individnals and entities subject to private law. Consequently, as
between the States parties to the present dispute such contracts and
arrangements are res inter alios acta. In accordancewith the general
principles of international law, the Government of Israel contends
that they have no relevance for the claim contained in the Applica-
tion instituting Proceedings, and do not affect the international
obligations upon Bulgana to make to Israel satisfaction and repara-
tion for the damage caused to Israel by the destruction of 4X-AKC,
an aircraft registered in Israel, at the hands of the Bulgarian armed
forces acting jzcreimperii. OBSERVATlONS OF ISRAEL (3 II59)
Part In
36. Having regard to al1the foregoing arguments and contentions
jointly and severally the bnef and comprehensive Submission of
these Written Observations is:
Rejecting al1Submissions to the contrary,
To dismiss the Preliminary Objections, and
To resurne the Proceedings on the ments.
Dated this 3rd of February 1959.
(Signed) Shabtai ROSENNE,
Agent for theGovemrnent of Israel.Annexes to the Observations and Submissions of the Govemment
of Israel
[Annexes I top: seeAnnexes to Mernorial,fif118-1241
Annex 43
BULGARIA: DECLARATION OF ACCEPTANCE OF THE
OBLIGATIONS CONTAINED IN THE CHARTER OF THE
UNITED NATIONS
Paris, 9 October 1948. Officia1text: French
Au nom de la République populaire de Bulgarie, le soussigné Vassil
Kolarov, Vice-Présidentdu Conseildes Ministres et ministre des Affaires
étrangères,dûment autorisé en vertu des pleins pouvoirs donnéà cette
fin par le Presidium de la Grande Assembléenationale, déclareque la
République populaire de Bulgarie accepte par la présente, sans réserve
aucune, les obligations découlant de la Charte des Nations Unies et
qu'elle fait promesse de les observer, en tant qu'inviolables, du jour où
elle deviendra membre des Nations Unies.
(Signé V). KOLAROFF.
Annex 44
League of Nations
REPORT AND DRAFT RESOLUTION OF THE FIRST COMMITTEE
ON THE DISSOLUTION OF THE PERMANENT COURT
OF INTERNATIONAL JUSTICE
A. 35. 1946.
Geneva, April 17th, 1946.
Rapporteur: ProfessorK. H. Bailey (Australia).
Just as the dissolution of the League of Nations follows upon the
establishment of the United Nations, so the dissolution of the Permanent
Court of International Justice follows upon the establishment by the
United Nations of a new international Court of Justice. The new Court
has already commenced to exercise its functions. Accordingly, the
Assembly directed the First Committee to prepare the necessary reso-
lution for formally terminating the existence of the Permanent Court.
The First Committee does not think it appropriatto review in detail
the work accomplished hy the Permanent Court during the past twenty-
four years. The record of the judgments and opinions of the Court finds
its place in al1 standard works on the law of nations and enriches the
law libraries of the world. The First Committee does wish, however, to
emphasize, first, the close continuity that will exist between the Per-
manent Court and the International Court of Justice and, secondly, the162 AXNESES TO ISRAEL OBSERVATIONS (NO. 44)
significance for the world commuiiity of what the Permanent Court has
accomplished.
Ilen, conscious that they are, after all. mortal, may, when they hear
the word "dissolutioii", think that the Permanent Court is dead. In
substance, the contrary is the truth. The Statute of the new Court has
been modelled closely upon the Statute of the Permanent Court. The
hlembers of the International Court of Justice have symbolized the
relation between the new Court and the old by electing as their first
President the distinguished Judge Dr. J. Gustavo Guerrero, who, since
1937h ,as held the officeof President of the Permanent Court.
In the opinion of the First Committee, tbere can be no two views as
to the success of the work done in the reülm of international law by the
Permanent Court of International Justice. Its judgments have not only
contributed to the development of the doctrines of international law
but-more fundamentally-to the extension of the mIe of law in intcr-
national affairs. The League may take pride in having inaugurated the
first successful experiment, after many attempts in this field had failed
in the past, to establish a regular world tribunal for determining disputes
between States. The First Committee expresses the conviction that the
International Court of Justice will maintain the high traditions of its
predecessor.
On the present occasion, the First Committee recalls the distinguished
judges and officers of the Permanent Court, whose work built up its
traditions. The Committee pays tribute to the devotion to duty which
eiiabled the Court to be maintaiiied throughout the war, in the face of
"rea~ ~~ ~iculties.
The First committee records its gratitude for the message sent to the
Assemblv bv Dr. Guerrero. asthe Iast President of the Permanent Court.
in contemuiation of this-s-lemn occasion.
The ~i;st Committee unanimously recommends that the Assembly
should adopt the following resolutioii:
"THE ASSEMBLY OF THE LEAGUE OF NATIONS,
Considering that, by Article $2 of the Charter of the United
Nations, provision is made for an International Court of Justice
which is to be the principal judicial organ of the United Nations and
which is to be open to States not members of the United Nations
on terms to be determined by the United Nations;
Considering that the establishment of this Court and the im-
pending dissolution of the League of Nations render it desirable that
measures for the formal dissolution of the Permanent Court of
International Justice shall be taken;
Considering that the Preparatory Commissiori of the United
Xations, in a resolution of December 18th. 1945, declared that it
would welcome the taking of appropriate steps by the League of
Kations forthe purpose of dissolving the Permanent Court, and that
this resolution records the assent to the dissolution of the Permanent
Court of al1 the Memhers of the United Nations which are parties
to the Protocol of Signature of the Statute of the Permanent Court,
whether Members of the League of Nations or not;
Considerinp that al1 the Judges of tlie Permanent Court have
resigned and that on the dissolution of the League no machinerv
will exist for the appointment of iiew Judges: ANNEXES TO ISRAEL OBSERVATIONS (NO. 45) 163
RESOLVES:
That the Permanent Court of International Justice is for al1
purposes to be regarded as dissolved with effect from the day
following the close of the present session of the Assembly, but
without prejudicc to such subsequent measures of liquidation
as may be necessary."
Annex 45
OFFICIAL RECORDS OF THE GENERAL ASSEMBLY, TENTH
SESSION. ANNEXES. AGENDA ITEhl Gr
Document Al2940
Israel: request for the inclusioa supplementary item in the agenda of
the tenth session
[Original text: English]
[zz August 19551
LETTER DATED 21 AUG~IS1 T955ADDRESSED TO THE SECRETARY-GEXERAL
BY THE REPRESENTATIV OF ISRAEL
Xew York, zr August 1955.
On instructions from the Government of Israel. 1 have the honour to
request the inclusion of the following item in the'provisional agenda of
the tenthre-lar session of the United Nations General Assembly:
"The question of the safety of commercial aircraft flying in the
vicinity of, or inadvertently crossing, international frontiers."
An explanatory memorandum is enclosed in accordance with rule zo
of the rules of procedure of the General Assembly.
(Signed) M.R. KIDRON,
for PermanentRepresentative
of Israel tothe
Uniled Nations.
In recent years a iiumber of tragic incidents of shooting down of
commercial aircraft innocently deviating from fixed flight plans in the
vicinity of or across international frontiers have occurred resulting in
serious loss of life and causing grave international friction. It appears
clear that existing internationalles and practices in this field fail to
provide the necessary protection for aircraft and their passengers in the
circumstances indicated.
In inscribing this item on the agenda of the tenth regular session of
the General Assembly the Govemment of Israel is concerned exclusively
to propose that the General Assernbly request the Secretary-General to164 ANNEXES TO ISRAEL OBSERVATION( SNO. 45)
undertake a study of this question in consultation with the specialized
agencies concerned and any other body he may deem appropriate and
report to the General Assembly at its eleventh regular session his
findings and any recommendations he may wish to make for the preven-
tion of such incidents and to provide greater safety forair passengers.
Document A/C.~/L.~OI
Israel: draft resolution
[Original text: English]
[z Decemhev19551
TheGeneralAssembly,
Mindfwl of a ~iumberof incidents which have occurred in recent years
involving attacks on civilian aircraft innocently deviating from fixed
plans in the vicinity of, or across international frontiers,
Noting that such incidentscause loss of human lifeand affect relations
between States, and that the problem is therefore a matter of general
international concern,
I.Calls upon al1 States to take the necessary measures to avoid the
recurrence of such incidents in the future;
z.Invites the attention of the appropriate internationalorganizations
to this resolution and to the debate on this item held in the General
Assembly at its tenth session.
Document A13080
Report of the Third Committee
[Origi%altext: English]
[8 December19551
I.The General Assembly, at its 530th meeting on 30 September 1955.
decided to allocate item 61 of the agenda of its tenth session, entitled
"Question of the safety of commercial aircraft flying in the vicinity of,
or inadvertently crossing, international frontiers". to the Third Commit-
tee for consideration and report.
2. The Third Committee discussed the item at its 68znd and 683rd
meetings held on 5 and 6 December 1955. It had before it the letter
dated 21 August 1955 addressed to the Secretary-General by the
representative of Israel (Alzg40) requesting the inclusion of the item in
the agenda.
3. The basis of the Committee's discussion was a draft resolution
submitted by Israel (AIC.3IL.501) by which the General Assembly,
mindful of a number of incidents which had occurred in recent years
involving attacks on civilian aircraft innocently deviating from fixed
plans in the vicinity of, or across internationai frontiers, would (1) caU
upon ail States to take the necessary measures to avoid the recurrence ANNEXES TO ISRAEL OBSERVATIONS (NO. 45) 165
of such incidents in the future(2)invite theattention of the appropriate
international organizations to this resolution and to the debate on this
item held in the General Assembly at its tenth session.
4. Several representatives supported the draft resolution before the
Committee. Some, however, expressed surprise that the problem had
been introduced as a humanitarian matter.
5. Afghanistan proposed the following amendments (AIC.3IL.502)to
the Israeli draft resolution (AlC.31L.5o1):
I. First paragraph of preamble. ~elete the following: "a number of"
and "which have occurred in recent vears".
2. Operative paragraph I.Delete the following: "the recurrence of"
and "in the future".
The representative of Israel accepted the amendments proposed by
Afe"anistan.
6. Czechoslovakia submitted an amendment (AiC.31L.503) to the
Israel draft resolution in accordance with which the first paragraph of
the preamble would be replaced by the following:
years involving commercial aircraft deviating from fixed plans innt
the vicinity of, or across, international frontiers;".
7. The Committee rejected the Czechoslovak amendment by 23 votes
to 6, with 18 abstentions.
S. The Israel draft resolution (A/C.~/L.~OI),as amended by Afghani-
stan (A/C.~/L.~OZ)w , aç adopteù by 35 votes tonone, with 13abstentions.
Recommendation of the îhird Commillee
3. The Tliir<lCorniiiittve tliercfure recurninendi;to the Gcneral :\ssem-
hly the adoption of the lolls\r.inr:dmft resolution:
[~ext adofitedwithout changebj theGeneralAssembly. See "Action taken
6y the GeneralAssembly" below.]
Action taken by the General Assembly
At its 554th plenary meeting, on 14 1)ecember 1955, the General
Assembly adopted thedraft resolution submitted by theThirdCommittee.
For the final text, see resolution 927 (X) below.
Resolution 927 (X)
[Document AIRESI3621
QUESTION OF THE SAFETY OF COMMERCIAL AIRCRAFT FLYING IN THE
VICINITY OF,OR INADVERTENTLY CROSSING ITERNATIONAL FRONTIERS
The GeneralAssembly,
Mindful of incidents involving attacks on civilian aircraft innocently
deviating from fixed plans in the vicinity of, or across, international
frontiers,
Noting that such incidents cause loss of human life and affect relations
between States. aiid that the problem is therefore a matter of general
international concern,166 ANNEXES TO ISR.*EL OBSERVATIONS (NO. 45)
I. Caiiszipon al1States to take the necessary measures to avoid such
i~ ~ ~~~ ~ :
2. Invites the attention of the appropriate international organizations
to the present resolution and to the debate on the matter held in the
General Assembly at its tentli session
Other documents pertaining to Agenda Item 61
Docunreril No. Tille Obserualionr and vefere>ices
AIC.3IL.5oz Afghanistan: amendments to docu- Incorporated in A/)aSo.
ment A/C.31L.joi para. j
AIC.31L.501 Czechoslovakia: amendment to docu- Ibid. para. G
ment A/C.j/L.joi
AlRESj362 Kesolution adopted by the General Seeabo\.e"Action taken by
Assembly at its 554th plenary the General Assembly".
meeting on iq December i9jj The text of the resolution
also appears in the Oficinl
Records of fhc Generol
.4rrcmbly, Tenth Session.
.Supplci~,enl AroIr).asreso-
lution gz, (X)
MEETING ST WHICH AGENDA ITEM 01
WAÇ DISCUÇSED
Summary records of the 682nd and
AIC.3/SR.6Sz
and 683 G83rd meetings of the Third Com-
mittee
Verbatim record ofthejj4th plenary
AIPV.5j4 meeting of the General Assembly
Observations and Submissions of the Government of Israel on the Preliminary Objections of the Government of the People's Republic of Bulgaria